Scapegoating Our Soldiers in Iraq

The case of Lt. Michael Behenna has all the intrigue and suspense of a Brian Haig political thriller, with the main character a JAG defense attorney. Unfortunately, this is not a novel, but instead a true story of injustice. According to those interviewed and documents viewed by American Thinker, Lt. Michael Behenna was set up for failure by a series of events and people.On April 21, 2008 while returning from a patrol, a vehicle in Lt. Behenna's platoon triggered an IED. Those killed included the platoon interpreter, a local citizen, and Army specialists, including a good friend of the lieutenant who was literally cut in half. Ali Mansur was later identified as an al-Qaeda operative and as one of those responsible for the attack. Fourteen days later, while searching Mansur's house, Behenna took Mansur into custody and turned him over to Army Intelligence for interrogation. At no time did Behenna harm the terrorist responsible for this horrific attack.

After the incident, Michael was described as being distraught, unable to sleep, and not eating well. His mother, one of the Timothy McVeigh prosecutors, told American Thinker that all Michael wanted was to come home on leave to be with his family and friends.

There were four interrogations of Mansur with Behenna present. Instead of trying Mansur for murder, someone ordered his release, even while knowing he was a terrorist involved in the killing of U.S. soldiers. To this day, no one has said who ordered the release and why.

What is inconceivable and unimaginable is that Michael was ordered by his captain to return Mansur to his home, an event that set Michael up for failure. There is a reason why police directly isolate a detective from being involved with a suspect who hurt or killed the policeman's partner. Who in his right mind would ask Michael to escort this terrorist, only three weeks after the IED attack?

Michael took with him an interpreter and a staff sergeant. He had every intention of following the order, but he had decided to first interrogate Mansur to get additional information about Mansur's terrorist cell. He used supposedly common interrogation techniques for the time, including stripping the terrorist and pointing his Glock gun at him. Because the terrorist's hands were drawn behind his back, the cuffs were taken off to be able to strip him. Michael testified that while turning his head to speak to his interpreter, Mansur charged him and reached for his gun. Michael fired two shots that killed Mansur. Charles van Heck, an expert on this case, noted how ironic it was that the U.S. government issued a kill/capture order three days later.

After returning from a two-week leave, Michael was charged on July 31, 2008 with premeditated murder, assault, and making a false official statement regarding the death of the Iraqi detainee. Perhaps the lieutenant set himself up for failure. He disobeyed an order, yet was never charged for this offense. By taking off the cuffs, he put himself in a position for the terrorist to attack him, and he never personally came forward about the events leading to the killing of the terrorist. A former Army major commented, "There must be good, order, and discipline in the armed forces. A military officer's responsibility is to have law and order on the battlefield. Obviously, Michael's judgment was faulty, but his motivations were sincere."

Behenna's court-martial began on February 23, 2009. The prosecution based their case on two primary eyewitnesses: Harry the interpreter and Staff Sergeant Hal Warner. The sergeant negotiated a plea bargain and agreed to plead guilty to assault, mistreatment of a subordinate, and making a false statement in exchange for the dismissal of the charge of premeditated murder. He also agreed to testify against Behenna.

These two witnesses also set Michael up for failure by making inconsistent and contradictory statements during the trial. In his testimony, while being questioned by the prosecutors, Warner stated that Behenna's actions of interrogation were not normal procedures. He also testified that he saw his lieutenant pull the trigger and fire the second shot while Mansur was in a sitting position, and that Behenna ordered him to throw a thermite grenade at the terrorist.

During intense cross-examination by the defense attorney, Jack Zimmerman, Warner retracted a lot of his comments. Van Heck points out to American Thinker that Michael's pistol, a Glock, has a hidden hammer, so it would have been impossible for Warner to see him pull it. In addition, he noted that Warner was approximately 50 yards away at the time of the first shot and had to run downward on sand in full body armor. However, that would also be impossible, since a consensus of those involved in the trial determined that two to four seconds passed between shots.

The interpreter, Harry, told the prosecutors in court that Mansur was shot by the lieutenant while seated and that he was lying on his side when he was shot by the second bullet. During cross-examination, Zimmerman established Behenna's intent for pointing his gun at Mansur. He was able to get Harry to admit that he did not think his lieutenant was going to actually kill the terrorist, but instead was just trying to scare him to get answers. More importantly, Zimmerman had Harry admit, "No, I didn't see exactly" what happened right before the gunshot. Harry also stated that Behenna did not issue an order for Warner to throw the grenade -- on the contrary, Warner did it of his own accord.

By failing to disclose information to the defense, the prosecution team also set Michael up for failure. Charles van Heck noted that seven months before the court-martial began, the defense sent a letter to the prosecution requesting all exculpatory evidence. During the course of the trial, the prosecution were reminded of their legal obligation to disclose any and all evidence. The prosecution alleged that Mansur was shot execution-style with two shots, the first one to the head and the second one under the arm.

Dr. Herb MacDonell was chosen by the prosecutors to be a forensic science rebuttal witness. During a meeting, he discounted their theory: "The only things I could come up with consistent with all of the facts as I know them would be that he probably was shot in the side with his arm up, in the chest or side, and then as he dropped straight down the bullet went straight through his head because he passed in front of the muzzle at the exact moment[.] [T]hough extremely unlikely, that's what happened." The following day, Michael testified on the sequence of events culminating in Mansur's death. As MacDonell was hearing this testimony, he could not believe that it was exactly the same scenario he had given the prosecution the day before, based on the forensic evidence: the condition of the retrieved bullet, the bloodstain pattern, and the pathology. As he was leaving the courtroom, he told Zimmerman that he would have made a good defense witness. Once again, the prosecution team denied having any exculpatory evidence.

On Friday, February 27, 2009, Michael was found guilty of unpremeditated murder and sentenced to twenty-five years in prison, which was later reduced to fifteen years. MacDonell sent an e-mail to the prosecution and copied the defense, stating, "[I]t is quite important as possible exculpatory evidence so I hope that, in the interest of justice, you informed Mr. Zimmerman of my findings." Unfortunately, this did not arrive until Saturday, after the trial had concluded.

Vickie Behenna, in speaking to American Thinker, tried to take off her mom hat and limit herself to being a prosecutor. She angrily commented, "The evidence showed the trajectory of the bullets were horizontal and parallel. As a prosecutor, I would have questioned how that can happen if Mansur was seated. After hearing that the prosecution did not disclose exculpatory evidence, I felt like I was going to throw up. I was furious. This can affect the way people look on the justice system. I promised Michael that as long as I am alive, even if I have to do it one person at a time, I will tell his story."

Today, with the impact of TV shows like CSI, jurors require over-the-top evidence. Why would the jury convict Michael without the prosecution putting on the stand a forensic witness, instead relying solely on eyewitnesses? American Thinker was told of five possibilities:

First, MacDonell explained, "[y]ou can lead a truth to a jury, but you can't make them believe it. In all probability, the prosecution's theory is impossible: Mansur is first shot in the head, as the prosecution alleges, while sitting, then falls over on the ground with his armpit exposed, where a second shot hits him in the side. How could the second bullet have the same trajectory as the bullet to the head?"

Second: The defense called to the stand a psychiatrist as an expert witness, who testified that in his opinion, Behenna was suffering from Acute Stress Disorder at the time he shot Mansur. Did this hurt Michael when the jury deliberated? A former JAG prosecutor noted, "The UCMJ includes the affirmative defense of lack of mental responsibility. If the defendant was unable to appreciate the wrongfulness of his or her act, it can be used as an affirmative defense. PTSD, combat stress, and other mental health related issues can certainly be raised, but defense must ultimately show that the claimed condition rendered the defendant unable to appreciate that what he did was wrong."

Third: A former Army major also felt that the jury might not have believed the self-defense argument since "[t]he jury could have possibly thought, Michael expressed the desire to kill Mansur, puts himself in the conditions that caused Mansur to attack him, and now has an excuse for executing him. In addition, he covers up and does not report what happened. This is damning evidence in a courtroom. Any attempt to cover up is an indication that the accused committed the crime."

Fourth: Vicki Behenna believes that "[o]ur government wanted to show to the Iraqi government that they prosecute soldiers who are perceived of doing bad things. This was within a year of Abu Ghraib and the Blackwater killing of Iraqi civilians. Maybe they wanted to send a message that in combat zones, you cannot do things like this."

Fifth: In responding to a juror's question (in a military trial, they are allowed to ask questions) -- "Which is more reliable: eyewitness testimony or a forensic specialist?" -- the judge answered, "Eyewitnesses are more reliable than people who are not there at the time the shooting occurred."

The judge also set up Michael for failure by denying a mistrial. Vickie explained that the judge's instructions improperly limited Michael's right to self-defense. She felt that the technical issue involved the judge's implication that there was an assault by Michael even though the issue was never presented at trial. She also could not understand the judge's thinking that the withholding of MacDonell's evidence did not cause Michael prejudice or harm. He based his decision on the jury's verdict; therefore, MacDonell's testimony was irrelevant. Many of those interviewed wonder: if a terrorist were on trial and the prosecution withheld evidence, would a mistrial be called immediately?

On Monday, April 23, the U.S. Court of Appeals For the Armed Forces will hear the appeal to grant Michael a fair trial based on the above arguments.

Michael has been in prison for three years, accused of killing an al-Qaeda operative. He will be middle-aged by the time his sentence as it stands is served. This is a waste of a life for someone who by all accounts is a good person, a caring officer, and someone who worked to build bridges with the Iraqi people, including by learning some Arabic. Not only should he be allowed a new trial, but he should be released on time served. If not, there is the appearance that this trial and the events preceding used Lt. Michael Behenna as a scapegoat.

The case of Lt. Michael Behenna has all the intrigue and suspense of a Brian Haig political thriller, with the main character a JAG defense attorney. Unfortunately, this is not a novel, but instead a true story of injustice. According to those interviewed and documents viewed by American Thinker, Lt. Michael Behenna was set up for failure by a series of events and people.

On April 21, 2008 while returning from a patrol, a vehicle in Lt. Behenna's platoon triggered an IED. Those killed included the platoon interpreter, a local citizen, and Army specialists, including a good friend of the lieutenant who was literally cut in half. Ali Mansur was later identified as an al-Qaeda operative and as one of those responsible for the attack. Fourteen days later, while searching Mansur's house, Behenna took Mansur into custody and turned him over to Army Intelligence for interrogation. At no time did Behenna harm the terrorist responsible for this horrific attack.

After the incident, Michael was described as being distraught, unable to sleep, and not eating well. His mother, one of the Timothy McVeigh prosecutors, told American Thinker that all Michael wanted was to come home on leave to be with his family and friends.

There were four interrogations of Mansur with Behenna present. Instead of trying Mansur for murder, someone ordered his release, even while knowing he was a terrorist involved in the killing of U.S. soldiers. To this day, no one has said who ordered the release and why.

What is inconceivable and unimaginable is that Michael was ordered by his captain to return Mansur to his home, an event that set Michael up for failure. There is a reason why police directly isolate a detective from being involved with a suspect who hurt or killed the policeman's partner. Who in his right mind would ask Michael to escort this terrorist, only three weeks after the IED attack?

Michael took with him an interpreter and a staff sergeant. He had every intention of following the order, but he had decided to first interrogate Mansur to get additional information about Mansur's terrorist cell. He used supposedly common interrogation techniques for the time, including stripping the terrorist and pointing his Glock gun at him. Because the terrorist's hands were drawn behind his back, the cuffs were taken off to be able to strip him. Michael testified that while turning his head to speak to his interpreter, Mansur charged him and reached for his gun. Michael fired two shots that killed Mansur. Charles van Heck, an expert on this case, noted how ironic it was that the U.S. government issued a kill/capture order three days later.

After returning from a two-week leave, Michael was charged on July 31, 2008 with premeditated murder, assault, and making a false official statement regarding the death of the Iraqi detainee. Perhaps the lieutenant set himself up for failure. He disobeyed an order, yet was never charged for this offense. By taking off the cuffs, he put himself in a position for the terrorist to attack him, and he never personally came forward about the events leading to the killing of the terrorist. A former Army major commented, "There must be good, order, and discipline in the armed forces. A military officer's responsibility is to have law and order on the battlefield. Obviously, Michael's judgment was faulty, but his motivations were sincere."

Behenna's court-martial began on February 23, 2009. The prosecution based their case on two primary eyewitnesses: Harry the interpreter and Staff Sergeant Hal Warner. The sergeant negotiated a plea bargain and agreed to plead guilty to assault, mistreatment of a subordinate, and making a false statement in exchange for the dismissal of the charge of premeditated murder. He also agreed to testify against Behenna.

These two witnesses also set Michael up for failure by making inconsistent and contradictory statements during the trial. In his testimony, while being questioned by the prosecutors, Warner stated that Behenna's actions of interrogation were not normal procedures. He also testified that he saw his lieutenant pull the trigger and fire the second shot while Mansur was in a sitting position, and that Behenna ordered him to throw a thermite grenade at the terrorist.

During intense cross-examination by the defense attorney, Jack Zimmerman, Warner retracted a lot of his comments. Van Heck points out to American Thinker that Michael's pistol, a Glock, has a hidden hammer, so it would have been impossible for Warner to see him pull it. In addition, he noted that Warner was approximately 50 yards away at the time of the first shot and had to run downward on sand in full body armor. However, that would also be impossible, since a consensus of those involved in the trial determined that two to four seconds passed between shots.

The interpreter, Harry, told the prosecutors in court that Mansur was shot by the lieutenant while seated and that he was lying on his side when he was shot by the second bullet. During cross-examination, Zimmerman established Behenna's intent for pointing his gun at Mansur. He was able to get Harry to admit that he did not think his lieutenant was going to actually kill the terrorist, but instead was just trying to scare him to get answers. More importantly, Zimmerman had Harry admit, "No, I didn't see exactly" what happened right before the gunshot. Harry also stated that Behenna did not issue an order for Warner to throw the grenade -- on the contrary, Warner did it of his own accord.

By failing to disclose information to the defense, the prosecution team also set Michael up for failure. Charles van Heck noted that seven months before the court-martial began, the defense sent a letter to the prosecution requesting all exculpatory evidence. During the course of the trial, the prosecution were reminded of their legal obligation to disclose any and all evidence. The prosecution alleged that Mansur was shot execution-style with two shots, the first one to the head and the second one under the arm.

Dr. Herb MacDonell was chosen by the prosecutors to be a forensic science rebuttal witness. During a meeting, he discounted their theory: "The only things I could come up with consistent with all of the facts as I know them would be that he probably was shot in the side with his arm up, in the chest or side, and then as he dropped straight down the bullet went straight through his head because he passed in front of the muzzle at the exact moment[.] [T]hough extremely unlikely, that's what happened." The following day, Michael testified on the sequence of events culminating in Mansur's death. As MacDonell was hearing this testimony, he could not believe that it was exactly the same scenario he had given the prosecution the day before, based on the forensic evidence: the condition of the retrieved bullet, the bloodstain pattern, and the pathology. As he was leaving the courtroom, he told Zimmerman that he would have made a good defense witness. Once again, the prosecution team denied having any exculpatory evidence.

On Friday, February 27, 2009, Michael was found guilty of unpremeditated murder and sentenced to twenty-five years in prison, which was later reduced to fifteen years. MacDonell sent an e-mail to the prosecution and copied the defense, stating, "[I]t is quite important as possible exculpatory evidence so I hope that, in the interest of justice, you informed Mr. Zimmerman of my findings." Unfortunately, this did not arrive until Saturday, after the trial had concluded.

Vickie Behenna, in speaking to American Thinker, tried to take off her mom hat and limit herself to being a prosecutor. She angrily commented, "The evidence showed the trajectory of the bullets were horizontal and parallel. As a prosecutor, I would have questioned how that can happen if Mansur was seated. After hearing that the prosecution did not disclose exculpatory evidence, I felt like I was going to throw up. I was furious. This can affect the way people look on the justice system. I promised Michael that as long as I am alive, even if I have to do it one person at a time, I will tell his story."

Today, with the impact of TV shows like CSI, jurors require over-the-top evidence. Why would the jury convict Michael without the prosecution putting on the stand a forensic witness, instead relying solely on eyewitnesses? American Thinker was told of five possibilities:

First, MacDonell explained, "[y]ou can lead a truth to a jury, but you can't make them believe it. In all probability, the prosecution's theory is impossible: Mansur is first shot in the head, as the prosecution alleges, while sitting, then falls over on the ground with his armpit exposed, where a second shot hits him in the side. How could the second bullet have the same trajectory as the bullet to the head?"

Second: The defense called to the stand a psychiatrist as an expert witness, who testified that in his opinion, Behenna was suffering from Acute Stress Disorder at the time he shot Mansur. Did this hurt Michael when the jury deliberated? A former JAG prosecutor noted, "The UCMJ includes the affirmative defense of lack of mental responsibility. If the defendant was unable to appreciate the wrongfulness of his or her act, it can be used as an affirmative defense. PTSD, combat stress, and other mental health related issues can certainly be raised, but defense must ultimately show that the claimed condition rendered the defendant unable to appreciate that what he did was wrong."

Third: A former Army major also felt that the jury might not have believed the self-defense argument since "[t]he jury could have possibly thought, Michael expressed the desire to kill Mansur, puts himself in the conditions that caused Mansur to attack him, and now has an excuse for executing him. In addition, he covers up and does not report what happened. This is damning evidence in a courtroom. Any attempt to cover up is an indication that the accused committed the crime."

Fourth: Vicki Behenna believes that "[o]ur government wanted to show to the Iraqi government that they prosecute soldiers who are perceived of doing bad things. This was within a year of Abu Ghraib and the Blackwater killing of Iraqi civilians. Maybe they wanted to send a message that in combat zones, you cannot do things like this."

Fifth: In responding to a juror's question (in a military trial, they are allowed to ask questions) -- "Which is more reliable: eyewitness testimony or a forensic specialist?" -- the judge answered, "Eyewitnesses are more reliable than people who are not there at the time the shooting occurred."

The judge also set up Michael for failure by denying a mistrial. Vickie explained that the judge's instructions improperly limited Michael's right to self-defense. She felt that the technical issue involved the judge's implication that there was an assault by Michael even though the issue was never presented at trial. She also could not understand the judge's thinking that the withholding of MacDonell's evidence did not cause Michael prejudice or harm. He based his decision on the jury's verdict; therefore, MacDonell's testimony was irrelevant. Many of those interviewed wonder: if a terrorist were on trial and the prosecution withheld evidence, would a mistrial be called immediately?

On Monday, April 23, the U.S. Court of Appeals For the Armed Forces will hear the appeal to grant Michael a fair trial based on the above arguments.

Michael has been in prison for three years, accused of killing an al-Qaeda operative. He will be middle-aged by the time his sentence as it stands is served. This is a waste of a life for someone who by all accounts is a good person, a caring officer, and someone who worked to build bridges with the Iraqi people, including by learning some Arabic. Not only should he be allowed a new trial, but he should be released on time served. If not, there is the appearance that this trial and the events preceding used Lt. Michael Behenna as a scapegoat.